June 17, 2008

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court.

Is this really a myth? Hasn't it been clear for many years that the conservatives needed a swing vote (or two, before Alito)?

Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school.

Oh, yeah, academics. When didn't they complain that the Court is too conservative?

Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

Saves his claims of judicial supremacy? If you're going to use that inflammatory term, why don't you think it applies just as well to striking down the Gun Free School Zones Act and those attempts to abrogate sovereign immunity? (Justice Kennedy was in the majority in those cases.)

Courts interpret statutes and constitutional provisions and, in case of conflict, declare the Constitution the winner. To do that is to do what is required. It's not a power grab. The real problem — and of course Professor Yoo knows this — is interpreting the Constitution too broadly so that it beats out a statute when it shouldn't. That only deserves to be called "judicial supremacy" if the judge willfully expands the meaning of the Constitution to strike down a statute he doesn't like.

So, really, to put it undramatically, it all boils down to whether the majority or the dissenters had the better interpretation of the Constitution. Yoo, not surprisingly, agrees with the dissenters. Since he also, I assume, approved of the statute, his agreement with the dissenters doesn't test whether he's above the "brazen power grab" he sees from the majority. He wants this statute to survive.

The Boumediene majority ... assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

Now, wait a minute. Yoo is not saying merely that the proper constitutional interpretation yields strong executive powers in the area of war. He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly.

Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.

50 comments:

The fields worry about their boundaries, and stomp hard on the fingers that stray over their edges.

Contact is fatal to speciallization.

My own ignorant plain-guy-genre legal interpretation is that the President has the say and Congress can impeach and remove him, in matters of running the war, and the judges get no say, so it's a power grab.

I'm failing to meet all sorts of standards there, but in fields I'm not in.

Where does the constitution give the supreme court any voice in the conduct and prosecution of war? All the powers have been delegated to the congress and the executive, and those two branches were in agreement on the issue decided in Boumediene. It was the court who trespassed on the other branches' powers. A political question, no?

Did anyone listen to the Supremes questioning the Justice Department attorney, on C-Span? Breyer has a completely UNjudicial temperament. He wants Social Justice and he wants it NOW!! And he's gonna ram it down our throats...for our own good, of course.

Where does the constitution give the supreme court any voice in the conduct and prosecution of war?

The constitution clearly states that Habeas can only be suspended in times of rebellion of invasion. Neither of those conditions exist so the congress has no right to suspend habeas.

For all his whining and pants-wetting, there is nothing in the constitution that allows it to be suspended just because a Law Professor and Supreme Court justice are scared and think torture and eliminating 700 year old rights may be effective in get over their paranoia.

And as always Ann, I am so proud that you have provided in depth analysis and clearly stated your opinion on this Constitutional issue. After all, it is your life's work, and we depend on your expertise to guide us so we can get a better idea whether the court was right or wrong in this very important decision.

I would hate to have to rely on someone like Simon, who hasn't even gone to law school, for an opinion of the wisdom of this decision.

Well here we are: The United States Supreme Court now routinely invents constitutional rights to support whatever social, political, and legal goals it deems desirable. It is so much easier to legislate from the bench than it is through the branches of government that were created by our Founders to do just that.

"Where does the constitution give the supreme court any voice in the conduct and prosecution of war?"

The Constitution sets up a government of limited powers. It is the Court's role to interpret the Constitution and thus to say what the scope of those powers are. The real question is how broad war powers are.

It's ridiculous to argue that Woo is contradicting himself. Althouse's point is that Woo is claiming that the court is both acting with too much power and too little. This mischaracterizes Woo's point. He is pointing out that the U.S. court should have no say at all in the conduct of how the President and Congress conduct foreign policy on foreign soil. Therefore, the "willfulness" argument is false because the court doesn't have the right to be willful or not willful in the conduct of war.

Giving "detainees" constitutional rights is ludicrous. If the U.S. Government wants to kidnap the citizen of another country and hold them, the U.S. court has no say in that. The kidnapping is not a violation of the U.S. Constitution because that detainee does not have Constitutional Rights. it may be an act of war against another country or a violation of international law, but it is not a violation of the U.S constitution.

In retrospect, it was perhaps wrong by the Bush Administration to treat these prisoners as "detainees." They should be treated as prisoners of war who have violated all the rules of war. Maybe a new term can be used to describe them as "prisoners of unlawful war." They can only be released when the war is over. At the very least, the war is not over until the fighting ends in Afghanistan or when Bin Ladin is dead.

For all his whining and pants-wetting, there is nothing in the constitution that allows it to be suspended just because a Law Professor and Supreme Court justice are scared and think torture and eliminating 700 year old rights may be effective in get over their paranoia.

This is false. These detainees have no constitutional rights. They have no right to habeas corpus. Habeaus only extends to those with constitutional rights meaing U.S. citizens or other persons physically located in the U.S. who are not engaged in an act of war against the United States.

The court has no constitutional authority at all with this issue. In the end this decision will be followed in thoery but ignored in fact, because it is impractical to follow the decision.

The Constitution sets up a government of limited powers. It is the Court's role to interpret the Constitution and thus to say what the scope of those powers are. The real question is how broad war powers are.

Congress can also say what's in the Court's scope, as I heard somewhere, so evidently the Court doesn't get the absolute say in the matter.

The limited powers always come back to not to something laid out ahead of time but to another branch remedying it and then standing for election soon, as a check on its decision.

In retrospect, it was perhaps wrong by the Bush Administration to treat these prisoners as "detainees." They should be treated as prisoners of war who have violated all the rules of war.

Well, if boneheads like Yoo and Bush had listened to the lawyers of the uniformed military from the start and used procedures already in place under the UCMJ to handle these detainees, we probably wouldn't be having these problems. But the Administration decided that the current military justice system gave the detainees too many rights and decided to go with much harsher and kangaroo-court like procedures that have created the mess we are in now.

Yoo, Bush, Rumsfeld and all the imcompetent idiots who dreamed up this debacle have no one to blame but themselves.

The constitution clearly states that Habeas can only be suspended in times of rebellion of invasion

I'm not seeing the habeas suspension argument as anything but a ruse for a power grab. There is no justiciable habeas issue here. These are not people who have any right, redress, or standing under the constitution. We are talking about non-Americans, living and working overseas who were never here, combatants who engaged our military in war over there, and who are now therefore being held by our military outside of the US.

I don't see an inherent contradiction between a desire for strict construct and the belief that 'the Constitution is not a suicide pact'. I could see how people could abuse the notion of imminent danger to create a contradiction, but I don't believe the contradiction is obvious as you seem to think.

These detainees have no constitutional rights. They have no right to habeas corpus. Habeaus only extends to those with constitutional rights meaing U.S. citizens or other persons physically located in the U.S. who are not engaged in an act of war against the United States.

This may be true Sloan. But of course the Supreme Court has found that the procedures the Administration has set up to determine whether the detainees were indeed "engaged in an act of war against the United States" are so lacking that the assertions you make have not been demonstrated for all the detainees at Guantanamo (which actually is part of the U.S. for the purpose of habeas rights).

So your argument, while technically correct, is inapplicable in the present cases.

But of course the Supreme Court has found that the procedures the Administration has set up to determine whether the detainees were indeed "engaged in an act of war against the United States" are so lacking that the assertions you make have not been demonstrated for all the detainees at Guantanamo (which actually is part of the U.S. for the purpose of habeas rights).

So your argument, while technically correct, is inapplicable in the present cases.

You are wrong about this. The court has no right to challenge the procedures set up by Congress and executed by the Administration pertaining to this issue. The court may have a right to review the facts if the government picked up a US citizen or someone on U.S. soil, but it has no right anywhere else. Citizens of other countries in those countries have no constitutional Rights. If Bush wants to kidnap them or bomb them out, the Court has no constitutional right to prevent it no matter what procedures are used to determine their "status."

This is an impractical and illogical decision that won't be followed in the end.

So, really, to put it undramatically, it really all boils down to whether the majority or the dissenters had the better interpretation of the Constitution.

In my mind it all boils down to whom the benefits of our constitution applies. Even so far as to non-citizens hell-bent on its destruction? That is an expansion of the constitution, a power grab.

SCORE! Judicial wins.

But that's winning after Executive already won. Bush had his way with this for his entire term. Yoo acknowledges this by recognizing we haven't had any attacks since 9-11.

I've read this three times and I'm not seeing the contradiction you're pointing out. You lost me at the 'because' part; because it demands that the judges look at real-world conditions. I don't see how having to look at that demands greater judicial activism. They could have just as easily backed off. they didn't back off, they grabbed instead. But I am just a caveman, frightened and confused by these modern ways.

What motive would any potential enemy of the United States have to abide by the rules of war (Geneva Conventions) if we grant illegal combatants the kind of rights normal POWs get?

This is a great point. We are essentially destroying the purpose of the treaty by stripping it of any consequences for violations.

This kind of illogical conclusion is the essence of the utopia of modern liberalism. Modern liberalism strips law abiding citizens of all their rights and thus de facto hands all the rights to those who do not follow the law. The most standard example is gun control, where the law hands criminals all the rights because they do not follow the law in the first place.

Sloan: "He is pointing out that the U.S. court should have no say at all in the conduct of how the President and Congress conduct foreign policy on foreign soil. Therefore, the "willfulness" argument is false because the court doesn't have the right to be willful or not willful in the conduct of war."

As I understand this ruling, the detainees can now challenge being held at Guantanamo. That's a good thing. We're told they're all dangerous criminals, but are they? Weren't some of them sold out and not captured on the battlefield at all? I expect many of those challenges failing and those detainees staying right where they are, or at very least some of them.

I suppose the 5 Justices are patting themselves on the back and basking in the glow of knowing they have advanced human rights. But the practical result is they have made the practical costs of nabbing insurgent prisoners much higher. So the net result is there will be less willingness on part of US forces to take insurgents prisoner. The troops are gonna say "Why bother?".

The author avails himself of the strict constructionist philosophy that the Constitution has always had one meaning, and is not to be 'interpreted' but rather 'understood'.

He then uses the context of the current war and turmoil to suggest an alternative result was necessary in this case.

However, for the contradiction to exist, one must assume that their is a Constitutional issue in this case, which is far from apparent. One my also assume (if you take the author's word on the gravity of the issue) that the Constitution IS a suicide pact.

Regular lawfull combatant POW's cannot challenge their detention in US courts, so we now allow illegal combatants MORE rights than legal ones...This is a "good thing"?

Regular lawful POWs have many more rights than illegal combatants. Besides the point here is that the point of the habeas hearing is to determine if these detainees are even "illegal combatants" to begin with. The "fact" that those of you who are all so appalled by this decision are so certain of is precisely the issue the habeas petition is meant to determine. The process the government used to claim these detainees were indeed "illegal combatants" was so unfair as to be fatally flawed.

"He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly."

It's not just Yoo who says war is different. The Supreme Court has often said that war, and the military in general, are different and that the difference matters in applying constitutional rules developed for domestic civilian society in the military context. See, e.g., Gilligan v. Morgan, 413 US 1, 10 (1973) ("[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. ... [D]ecisions as to the ... control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches."). Yoo's point that "the primary business of armies and navies [is] to fight wars should the occasion arise," rather than to play CSI - Miami at the whim of whatever district judge may be presiding over an enemy combatant's habeas, is just what the Supreme Court said in Parker v. Levy, 417 US 733, 743 (1974), quoting US ex rel Toth v. Quarles, 350 US 11, 17 (1955), which Yoo applies in a different factual setting. Rostker v. Goldberg, 101 S.Ct 2646, 2651-52 (1981), and many other cases, make the same point.

So, if there is any contradiction here, the Supreme Court rather than Yoo is the source of the problem.

Nor is there much to recommend in Ann's suggestion that "judicial willfulness" results from "demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly." With respect to the "war/military is different" distinction, the Supreme Court drew that line long ago, after taking just that kind of "look at real-world conditions" (as well as a side glance at Articles I and II of the Constitution). And "look[ing] at real-world conditions" and adapting one's behaviour accordingly is what most people call acting rationally. Does anyone think that a system of adjudication that required the decision-maker not to "look at real-world conditions" has anything to recommend it?

Has no one read Greenwald? The absolute falsity of this statement shows that the Supreme Court was right to bridle W. and his minions. But thanks for the John Yoo talking points:

We are talking about non-Americans, living and working overseas who were never here[1], combatants who engaged our military in war over there[2], and who are now therefore being held by our military outside of the US[3].

sigivald -- MA was physically present in the US when he was seized. That's why I put my footnote where I did.

I don't know how my comment shows partisanship. Had McCain been born on foreign soil, his status as natural-born citizen would be in doubt. Instead he was born to US parents in a place where the US was sovereign.

Has no one read Greenwald? The absolute falsity of this statement shows that the Supreme Court was right to bridle W. and his minions. But thanks for the John Yoo talking points:

One of the main tenants of liberalism is to give your enemy more rights than yourself. This is exactly what this case does and it is what the liberals on this board support.

The decision essentially gives U.S. constitutional rights to everyone in the world without anything in return from them.

On the other side, stupid decisions like this will remind us about the horrors of liberalism. There will be a moment when a combatant is detained and then eventaully released due to the good work of the liberals at your neighborhood legal aid society. A month later the same detainee will blow himself up in a school in Kandahar decapitating and grounding the brains and bodies of several dozen children in the process. It will be a shining moment for liberalism and it is assured to happen after this decision.

Of course the detainee will never know why he was released. In his mind it will be nothing more than a blessing from Allah.

"the point of the habeas hearing is to determine if these detainees are even "illegal combatants" to begin with"

This is a good point freder. Part of the reason there is no need for hearings for legal combatants is that they wear uniforms and are thus clearly identifiable--the fact that they are an enemy allows them to be captured, we don't have to show that they engaged in any hostile activity.

The fact that illegal combatants don't wear uniforms makes them harder to identify--it all comes down to their actions. So, it is prone to error, but to give each of them hearings will function to treat the innocent more fairly, but will also reward illegal combatants. Regular POWs do have lots of rights, but not the right to petition US courts for release.

So, if the Japanese had landed troops in California in WWII, they should have habeas hearings if captured?

Japan was a state actor, so the status of their troops was clearcut. The survivors would have been sent to a PoW camp in the US. The more apposite situation was our internment of enemy aliens, which overbroadly included all citizens of Japanese origin. They were put in camps with their families, where they had a semblance of ordinary life, instead of solitary confinement or around the clock interrogation as happened in Guantanamo Bay. Later they were allowed to leave, if they agreed to resettle to the East and Midwest.

Freder "You have a very low opinion of the morality, discipline, and training of our soldiers, don't you? "

Well no. As I am one, with a combat tour, perhaps I have a more realistic view of them as they operate in combat. And thus perhaps I might be better equipped to understand the risks associated with grabbing a prisoner instead of eliminating one. Especially given the enemy tactic of hiding explosives under one's clothes so that they might take out an American in a burst of glory. As I stated, the costs associated with taking prisoners has just increased exponentially so when in doubt why should a soldier take the risk? Would you take that risk?

Precedent isn't always strictly logical. I imagine Yoo would say his argument for a different calculus during wartime is mandated by the precedents, and Kennedy overlooked that. Numerous critics have chided Kennedy for ignoring precedent, and the holding itself says "[T]he lack of an on point precedent is no barrier to our holding. We hold that..." So: Yoo is correct.

"The more apposite situation was our internment of enemy aliens, which overbroadly included all citizens of Japanese origin."

I beg to differ. The more apposite situation was what was done with German and other enemy spies that wreaked havoc stateside: they were summarily executed, if memory serves. Out of uniform = out of luck, sucker. Them's the breaks, or at least that used to be the case.

The problem has never been that the detainees at Club Gitmo have not had hearings to determine that they are illegal combatants, because they all have, and likely multiple ones. But they were military tribunal type hearings where the detainees didn't have all the rights that we would normally require in a criminal arrest.

What is going on here is the granting Gitmo detainees the right to contest their detention in our civilian courts. In the previous go arounds, the Supreme Court found a statutory right to do so, and Congress promptly revoked it. This time, they found a Constitutional right, which cannot be revoked by Congress.

There are a lot of problems with that. First, historically, the Great Writ only ran to a country's borders - so it wouldn't reach to Australia from a British court (despite Australia being subject to the British Crown).

More importantly, civilian court oversight of military detentions (intentionally not held in the U.S. for just this reason) is arguably a bad idea. Also, many of our cherished safeguards are just not feasible in such a situation. The military tribunals operate using classified information, sworn statements, and the like, all of which would not be admissible in U.S. civilian courts.

Otherwise, the cases against most, if not all, of the remaining detainees, would be fairly strong. Many were caught on the battlefields of Afghanistan fighting us. Being in possession of a hot weapon and not in uniform after a fire fight with our troops or those of our allies is good indicia of the detainee being an illegal combatant.

What must be remembered is that there has been a concerted effort to clean out Gitmo. Those remaining are mostly considered too dangerous to release, but there is nowhere with a legal interest in them that we can release them to, given the human rights records of those countries.

The problem has never been that the detainees at Club Gitmo have not had hearings to determine that they are illegal combatants, because they all have, and likely multiple ones. But they were military tribunal type hearings where the detainees didn't have all the rights that we would normally require in a criminal arrest.

What is going on here is the granting Gitmo detainees the right to contest their detention in our civilian courts. In the previous go arounds, the Supreme Court found a statutory right to do so, and Congress promptly revoked it. This time, they found a Constitutional right, which cannot be revoked by Congress.

There are a lot of problems with that. First, historically, the Great Writ only ran to a country's borders - so it wouldn't reach to Australia from a British court (despite Australia being subject to the British Crown).

More importantly, civilian court oversight of military detentions (intentionally not held in the U.S. for just this reason) is arguably a bad idea. Also, many of our cherished safeguards are just not feasible in such a situation. The military tribunals operate using classified information, sworn statements, and the like, all of which would not be admissible in U.S. civilian courts.

Otherwise, the cases against most, if not all, of the remaining detainees, would be fairly strong. Many were caught on the battlefields of Afghanistan fighting us. Being in possession of a hot weapon and not in uniform after a fire fight with our troops or those of our allies is good indicia of the detainee being an illegal combatant.

What must be remembered is that there has been a concerted effort to clean out Gitmo. Those remaining are mostly considered too dangerous to release, but there is nowhere with a legal interest in them that we can release them to, given the human rights records of those countries.

Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.

Why not? Don't you teach con law? You have an opinion on the onion rings in the Hillary Clinton commercial but not in your field?